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August 14, 2004

I'm home . . . and grumpy about the Sixth Circuit

Though I am very happy to be home and lucky to have dodged two hurricanes, I am very grumpy to find out that the Sixth Circuit in US v. Koch, No. 02-6278 (6th Cir. Aug. 13, 2004), yesterday "pulled a Hammoud" — i.e., they mimicked the work of the Fourth Circuit in US v. Hammoud (background here) by affirming en banc a guideline sentence while entering this order:

We hold, with a formal opinion and dissenting opinion to follow, that the decision of the U.S. Supreme Court in Blakely V. Washington, 124 S. Ct. 2531(2004), does not invalidate the appellant's sentence under the federal Sentencing Guidelines. Accordingly, the district courts within the Sixth Circuit are hereby instructed to continue sentencing defendants in accordance with the Guidelines, as they did prior to Blakely. In the interest of judicial economy, and pending a definitive ruling by the Supreme Court, we recommend that the district courts within this circuit also announce at the time of sentencing a sentence pursuant to 18 U.S.C.A. Sec.3553(a) (West 2000 & Supp.2004), treating the Guidelines as advisory only.

That my adopted home circuit has gone this route is troubling for a number of reasons: (1) we now have a fourth circuit essentially copping out by refusing to explore what Blakely could really mean for federal guideline sentencing (see concerns here); (2) the assertion that the announcement of an alternative sentence will serve the interest of judicial economy seems to defy reality, if not also the rule of law (see explanation here and here), and (3) the practice of issuing an important order without supporting opinions seems to foster confusion and uncertainty, and also is at least a partial abdication of a judicial commitment to provide a fully reasoned explanation for all decisions.

I guess I should not be too upset with the Sixth Circuit for following the Fourth Circuit's lead in Hammoud, since that decision nearly two weeks ago was so compellingly justified in the Fourth Circuit's written opinions. Oh, wait, my mistake — we still have not heard why or how the Fourth Circuit reached its conclusion in Hammoud; a full two weeks later an opinion has not been issued in Hammoud. Hmmm.... I guess the Fourth Circuit's complete silence is more persuasive to the Sixth Circuit than all the thoughtful district court opinions which have found that guidelines constitutionally problematic after Blakely (details here).

Finally, there is a great bit of irony in the Koch ruling: the Sixth Circuit is now recommending the announcement of an alternative sentence following the logic of the original Sixth Circuit panel decision in Montgomery (background here). The Sixth Circuit might have saved a lot of time and energy — and also, in my view, have been far more jurisprudentially honest — if it had simply left the Montgomery decision in place, and then simply "recommended" that district courts also announce a guideline sentence at the time of sentencing.

August 14, 2004 at 10:34 PM | Permalink


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All this disappointing and, in my opinion, timid circuit court action by judges with lifetime tenure is making me wonder what's behind it. With the possible exception of Judge Easterbrook's dissent in Booker, not one has really tried to distinguish the federal guidelines from Washington's system. It would be hard to imagine any of them seriously contemplating that the five member Blakely majority will fail to deal some type of blow to the federal guidelines.

In light of what seems to be the inevitability of the Blakely Effect, I find it disappointing that the circuits are ducking the issue. What I find more troubling, however, is that they seem to have gone out of their way to try to block the (more courageous, in my opinion) efforts of district judges who are trying to cope with the realities before them and are also thereby helping develop the issue before the Supreme Court ultimately weighs in on it.

I can't seem to find a principled basis for that. Is it possible that these appellate jurists, many of whom were once trial judges, simply don't realize the hardship that a wait-and-see approach has on defendants who will be serving sentences that will eventually be found to be unconstitutionally imposed? District judges realize that if Blakely applied, many defendants would be sentenced to time served but will now have to sit in jail while all concerned wait around, hands in pockets, for the Supreme Court to deliver the inevitable blow.

Is the value of consistency or systemic order so great in the interim that it outweighs the obvious individual costs? Do those judges who harbor thoughts of being elevated to the Supreme Court fear a senator's challenge to their decision in the summer of 2004 to declare the guideines unconstitutional before the Supreme Court made the same finding in the fall of that year? Perhaps lifetime tenure is no longer as valuable as it once was for abmitious judges in an era of contentious Supreme Court confirmations.

That's probably a little too cynical and an unfair suggestion. The circuit judges undoubtedly believe that what they're doing is in the long-term interests of the criminal-justice system. But the lengths to which they've gone to stifle debate in the district courts and to block them from from trying to find order and insight in uncertainty, reminds me of an equally ill-advised effort by the Supreme Court to truncate the process of determining who won Florida in the 2000 election. The Supreme Court may have learned a painful lesson from that effort and I wonder if, on a smaller scale, the circuit courts will have a similar experience when the full impact of their precipitous actions here becomes clear.

Posted by: Alex E. | Aug 15, 2004 12:45:47 AM

These are strong and fitting comments, Alex. Perhaps you might write this up for FSR?

I am eager to see what the Fourth and now the Sixth Circuit will say in defense of these orders. I think these orders are arguably defensible, but they must be defended on the record with reasoning much more complete and compelling than what the Second Circuit said in Mincey. And here's hoping district judges will keep speaking their minds, as Judge Goodwin did so eloquently in his recent Johnson opinion.

Posted by: Doug B. | Aug 15, 2004 7:54:20 AM

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